A DISCUSSION OF LAW AND JOURNALISM

Toyota Punk’d You!

By Sarah Berent and Mercedes Hobson

The world of advertising has changed drastically since the days of Don Draper. Fast forwarding through commercials combined with the steady decline of the print medium has forced advertisers to engage consumers in more creative and interactive ways. Still, you’d think there’d be a way to create innovative ad campaigns without scaring the living daylights out of people.

Well, maybe not.  In 2008, when car giant Toyota hired advertising agency, Saatchi & Saatchi, to promote the launch of its Matrix model, ad execs (maybe they were true “mad” men) came up with the “Your Other You” campaign which created elaborate pranks to be played on the unsuspecting.

Visitors to a website specifically created for the Toyota campaign were able to secretly sign up a friend to be pranked. A questionnaire was emailed to the “victim” disguised as a personality test. In actuality the autobiographical answers provided the basic framework to initiate the stunt.

Enter the case of Amanda Duick. After a friend signed her up for what she thought was an online personality test, our innocent bystander began to be stalked via e-mail by a stranger named “Sebastian Bowler”, who identified himself as a 25- year-old Englishman.

For five days straight, he emailed and texted the poor girl, claiming to be on a cross-country road trip and heading to her house to hide out from police. The clever people at Saatchi & Saatchi painstakingly created a fake MySpace profile for this Sebastian with artful detail to give their stalker character an air of legitimacy. The prank went so far as to convince Ms. Duick that she was going to be held liable for her stalker’s damaged motel room after receiving an angry email from someone purporting to be the motel manager.

Ms. Duick’s reaction?  As expected, a major freak out. She panicked to all her friends and relatives and even slept with mace and a baseball bat next to her bed.

Then, surprise! She received a message directing her to a video explaining she had been punk’d by Toyota as part of its exciting new campaign! Yay?  

The following year, Amanda Duick sued Toyota, Saatchi & Saatchi, and 50 other individuals associated with the campaign in Los Angeles on various counts including, intentional infliction of emotional distress and unfair and deceptive trade practices. She seeks $10 million in damages.

Toyota sought to have the lawsuit dismissed and moved to arbitration, arguing that Ms. Duick agreed (without knowing she agreed) to the whole prank when she clicked an online terms-of-service agreement, which included an arbitration clause. The Court of Appeal of California rejected this argument stating that there was no way Ms. Duick could tell what she signed up for or consented to.

The story on ABC News explained what led to the lawsuit, but offered no clue as to whether Ms. Duick would succeed on her claims.

Ms. Duick’s claim for unfair and deceptive trade practices will probably be deemed fruitless.  California law prohibits unfair methods of competition and deceptive practices in relation to advertising, but the law states that the defendant must have intended that this behavior result in the sale or lease of goods and services.  Based on the facts presented in the case, although Toyota commissioned an advertising campaign for its new car, the company did not intend that those pranked would run out and buy a Toyota Matrix.

California law also recognizes the right to recover damages for the intentional or unreasonable infliction of emotional distress that results in foreseeable injury.  To launch a successful case for the intentional infliction of emotional distress, the plaintiff must prove that the defendant’s “outrageous” conduct was conducted with the intention of causing, or reckless disregard of the probability of causing, emotional distress, and the plaintiff must have suffered severe or extreme emotional distress that was actually caused by the defendant’s conduct.  Although the presence of a physical injury is generally required, California has acknowledged the right to recover for emotional distress alone in cases involving an extreme and outrageous intentional invasion of one’s mental and emotional tranquility.

It would not be unreasonable for a jury to infer outrageous conduct from the facts of Ms. Duick’s claim: that in an effort to promote a car, a company went to great lengths to make her she believe she was being stalked by a criminal. There is little doubt that the ad campaign was the cause of Ms. Duick’s emotional distress.

But although Ms. Duick was legitimately frightened for the five day time period, it does not appear on these facts that she suffered emotional distress at the requisite level described in California caselaw as “beyond what a “[r]easonable [person]…in a civilized society [would]…be expected to endure.” Liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” but only to conduct so extreme and outrageous “as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

In a 2010 California Court of Appeals case, a dentist sued for intentional infliction of emotional distress when a man and his wife posted false assertions and a negative review about her dental skills on Yelp.com. The dentist alleged that the review caused sleep loss, stomach problems and general anxiety. The court ruled that this did not amount to  “severe emotional distress,” as required for the claim, even if the review was “emotionally upsetting.”

Ms. Duick’s level of emotional distress does not seem to surpass the generalized anxiety and discomfort level which the court ruled as insufficient to sustain her claim. Ms. Duick alleges that the incident prompted difficulty sleeping, diminished work performance and fear. But there is no evidence that Ms. Duick ever contacted the police during this time period, prompting us (and probably a court) to question how deeply distressed she was.  Certainly not $10 million deep.

On the other hand, her tale is certainly one to outrage the ordinary consumer. We think it would be a great public relations move for Toyota to quietly settle this case and issue her an apology.  And maybe a Toyota Matrix.

 

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One Response

  1. James Belucci says:

    That is one crazy ad campaign. Don’t know why I hadn’t heard about this. thanks.

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